BRINDHA Vs. K.T.MUTHUKUMAR

JUDGEMENT

(1.) This Criminal Revision Case has been filed against the judgment dtd. 19/3/2021 passed in C.A.No.145 of 2020 on the file of the learned First Additional District and Sessions Court, Coimbatore, confirming the judgment dtd. 21/2/2020 passed in S.T.C.No.137 of 2016 on the file of the learned Judicial Magistrate No.I, Pollachi.

(2.) Petitioner is the accused. Respondent is the complainant. Respondent filed a private complaint against the petitioner herein under Sec. 200 Cr.P.C., for the offence under Sec. 138 of Negotiable Instruments Act in S.T.C.No.137 of 2016 before the Judicial Magistrate No.I., Pollachi. The learned Magistrate, after trial allowed the complaint filed by the respondent/ complainant and convicted the petitioner herein and sentenced her to undergo three months simple imprisonment. Challenging the judgment of conviction and sentence passed by the learned Judicial Magistrate, the petitioner herein filed an appeal before the learned I Additional District and Sessions Judge, Coimbatore. The learned Sessions Judge, took up the appeal in Crl.A.No.145 of 2020 and after hearing the arguments on either side, dismissed the appeal by confirming the conviction and sentence passed by the trial Court. Aggrieved over the same, the petitioner has filed the present Revision Case before this Court.

(3.) Learned counsel for the petitioner would submit that there is no evidence on record to prove the transaction between the parties. The Trial Court erroneously convicted the petitioner on the basis that Sec. 139 of Negotiable Instruments Act raises presumption with regard to the existence of debt. The learned Trial Judge failed to consider the existence of legally recoverable debt is not a matter of presumption under Sec. 139 of Negotiable Instruments Act. It is for the complainant has to prove the foundational fact that there was an existence of debt and the cheque was issued to discharge the legally enforceable debt. Unless the complainant to prove the foundational fact, the presumption under Sec. 139 of the Negotiable Instruments Act would not arise. Once the complainant proved the foundational fact of debts and liabilities, then it is for the accused has to rebut the presumption. The accused need not rebut the presumption by direct evidence and she can always rebut the presumption by prepondrance of probablities. The onus of proof of the accused is not that much heavy as that of the complainant. Therefore, the accused always presumed to be innocent unless the complainant proved the guilt of the accused. No doubt the presumption under Sec. 139 of the Negotiable Instruments Act is a rebuttable presumption. He would further submit that there is no legal obligation let in negative evidence to prove the innocence in a criminal case. The accused can discharge her burden on the basis of material already brought on record as the accused has a constitutional right to maintain silence. Further, he would submit that as per Sec. 269 SS of the Income Tax Act, any advance taken by way of any loan amounts to more than Rs.20,000.00 was to be made by way of account payee cheque only. Sec. 271 D of the Income Tax Act says that non-compliance of Sec. 269 SS is penal in nature. Further, he would submit that the respondent/complainant has not proved the execution of the cheque. Therefore, the case of the complainant cannot be accepted simply on the basis of evidence of P.W.1 and Exs.P1 to P6. Execution of Ex.P1 has not been proved in the manner known to law and that apart the contradiction in filing the income tax returns has not been taken into consideration. Even though the respondent has failed to establish the initial burden of proof, the trial court failed to appreciate the evidence and erroneously fixed the appellant as accused and convicted him under Sec. 138 of the Negotiable Instruments Act.